The court affirmed the validity of a mortgage deed executed by a deceased borrower, emphasizing the defendants' failure to prove claims of prior partition and lack of consideration.

JUDGMENT :

V. GOPALA KRISHNA RAO, J.

1. The appeal is filed against the judgment and decree dated 24-10-2002 passed by the learned Senior Civil Judge, Gudivada, Krishna District, in O.S.No.19 of 1994. The suit is filed for recovery of an amount of Rs.61,150/-.

2. Brief averments in the plaint filed by the plaintiff are as follows:

(a) The plaintiff pleaded that the 1st defendant is the wife and defendants 2 and 3 are minor children of one late Karempudi Venkata Sambasiva Rao and the said Sambasiva Rao during his life time, borrowed an amount of Rs.40,000/- from the plaintiff on 22-3-1991 for the purpose of his joint family necessities and he executed a registered mortgage deed in favour of the plaintiff in respect of the plaint schedule property.

(b) The plaintiff further pleaded that in spite of repeated demands, the said Sambasiva Rao, during his life time, postponed the payment and he died intestate and all the properties of Sambasiva Rao devolved upon the defendants as his legal representatives and after the death of Sambasiva Rao, though the plaintiff demanded the defendants to deposit the suit debt, they failed to discharge the suit debt and that the plaintiff is constrained to file the suit.

3. The case of the defendants, as per the written statement filed by them, is that in the presence of elders, all the properties of late Sambasiva Rao were divided by metes and bounds in the first week of January, 1991 and in the said partition, the plaint schedule property fell to the share of Karempudi Suneetha i.e. 3rd defendant and since then, the defendants 2 and 3 and late Sambasiva Rao have been in separate possession and enjoyment of the plaint schedule property. They further pleaded that subsequently, a regular partition deed was executed on 11-9-1991 and registered the same and later Sambasiva Rao died on 13-5-1992 and they further pleaded that the suit mortgage deed is not supported by consideration.

4. Based upon the pleadings of both the parties, the trial Court framed the following issues for trial:

(1) Whether the mortgage deed dated 22-3-1991 is true, valid and binding on the defendants ?

(2) Whether the alleged mortgage is for legal necessity or for the benefit of the joint family of Sambasiva Rao ?

(3) Whether the plaintiff is entitled to suit amount ? and

(4) To what relief ?

5. During the course of trial, on behalf of the plaintiff, P.Ws.1 to 3 are examined and Exs.A-1 to A-7 are marked. On behalf of the defendants, D.W.1 is examined and Exs.B-1 and B-2 are marked.

6. After completion of the trial and hearing the arguments of both sides, the trial Court passed a preliminary decree for Rs.61,150/- with costs and interest at the rate of 12% per annum on Rs.40,000/- from the date of suit till the date of redemption and thereafter, with interest at the rate of 6% per annum from the date of redemption till the date of realization, granting 6 months' time for redemption. Felt aggrieved of the aforesaid judgment and decree passed by the learned Senior Civil Judge, Gudivada, the unsuccessful defendants therein filed the present appeal.

7. Heard Sri Dantu Srinivas, learned counsel appearing for the appellants/defendants, through virtual mode. None appeared for the respondent/plaintiff.

8. The learned counsel for the appellants would contend that if the Court below had tried issue No.1 separately, it would be in favour of the defendants because there was no prior demand by the plaintiff before the death of Sambasiva Rao whom the plaintiff alleged to have been executed the deed on 22-3-1991 in favour of him. He would further contend that the Court below ought to have held issue No.2 in favour of the defendants as the mortgage made by the 1st defendant's husband is not binding on them, as he was having no issues over the property as it was already partitioned. He would further contend that the Court below erred in holding that D.W.1 failed to produce any evidence on record to show that late Sambasiva Rao is a man of bad vices. He would